I'm a gadfly. Sometimes, in these postings, I posit outrageous things, or make controversial statements. I do this for the sake of sparking debate and discussion. Unlike many blogs, you can't assume that everything I post here is my own deeply held belief or position. I accept the risk that goes with being a gadfly. I ask you, dear reader, to focus on the message, and not the messenger.

Friday, September 2, 2011

Random Musing before Shabbat - Shof'tim 5771 Hassagat G'vul-Revisited

It was only five years ago that I wrote this musing on the subject of Hassagat G’vul, the moving of boundaries, and its extrapolation into the modern concepts of intellectual property rights and copyright. With each passing year it seems to me that general disregard for matters of intellectual property and copyright has gotten worse. We live in a world in which a great deal of stuff is available to a great many people, and people have grown to expect that many things we once thought of as valuable commodities should now be freely available.

It’s not enough to lament this situation. Strict enforcement isn’t the answer. I have some thoughts on what might work, but more on that later. Here’s what I wrote just 5 years ago (with some modifications and additions.)

19:14 You shall not move away the boundary (marker) of your neighbor which the first ones boundaried, in your taking possession of it, in the land which Ad"nai Your G"d gave to you to inherit. (JPS)

It's a simple enough commandment. You can't encroach on your neighbors property by moving the boundary markers around. There's plenty enough material in other parts of this parasha (and in particular the verses that follow soon after, regarding the requirements for witnesses in a legal proceeding.)

From this fairly straightforward verse in Torah, the rabbis constructed an entire class of laws referring to hassagat g'vul, encroaching upon the boundaries of others. As an agrarian society, the land one possessed had a direct impact on their ability to live, to, as we say, "make a living." As we moved from being a largely agrarian society into becoming merchants and engaging in other trades, it became necessary to define what "borders" needed to be protected in order to insure a person's livelihood.

The Talmud has a great example of how this concept was extrapolated into halakha when it speaks of the rights of a fisherman to not have his fishing-grounds encroached upon by other fishermen with their nets, the Talmud requiring that the other keep away at least the distance of a fish's swim (which they defined as one parasang, equivalent to about 2.5 miles!)

The concept of hassagat g'vul, moving boundaries, was eventually extended to the concept of unfair competition. And from there, it was a short hop to become one of the underlying concepts behind what Jewish law has to say about the protection of intellectual property, and more specifically, what we now call copyright.

The Chatam Sofer, Rabbi Moshe Schreiber (1762-1839, chief Rabbi of Bratislava) used the concept of hassagat g'vul to underlie his opinion on a matter concerning the editor of a series of siddurim (prayerbooks) and makhzorim (holiday prayerbooks) who was seeking to prevent others from republishing his editions. For the Chatam Sofer, it was ultimately a matter of comparing the work that the editors had put into their siddurim and machzorim - the layout, typestyles, etc. (though obviously not the basic text itself) to that of the fisherman who labors to lay his traps, set up his nets, and catch fish. The editor's work entitled him to derive income from his efforts, and it would be unfair of others to reprint his editions without compensation.

Much of what the rabbis wrote regarding intellectual property rights found its way into copyright laws in the U.S. and around the world. Unfair profiteering and racketeering by record companies, and other egregious abuses notwithstanding, the system has worked fairly well to insure the creator of an intellectual property the means to earn a living from those creations, and to be protected for unfair competition or use of those creations by others without permission or compensation.

And now, here we are, in the 21st century, with digital music, iPods, Napster, et al. Decades of copyright laws, and centuries of tradition seem to have outlived their usefulness. The laws as we know them have certainly not kept up. While the U.S. Patent and Trade Office, and its Copyright Office have been working hard to find ways to update the laws to reflect current (and future potential) realities, there have been only a few minor tweaks here and there so far like the Digital Millennium Copyright Act. (This act primarily serves to enable DRM, Digital Rights Management schemes employed by the recording industry and make it a violation to circumvent them. Since the act was passed in 1998, most major companies have dropped DRM schemes. Few of the commercial services (iTunes, Amazon, Rhapsody, etc.) still carry DRM-protected files.)

Judaism has managed its way around a host of major changes in society, and we'll find a way to manage this change as well. Yet the stage is already set for the almost complete tearing down of boundaries, by the alarming state of copyright abuse that goes on daily in our many Jewish institutions - synagogues, JCCs, schools, etc. I can't tell you how many times I have seen photocopies of complete textbooks being used, DVDs and Videos intended for personal home use being shown to large audiences. Photocopied music being used by choirs. Not to mention the times when I've overheard someone standing at the sales table of some musical artists at a concert or conference say "I'll buy these two CDs, and you buy those two, and we'll make copies for all the rest of the faculty.)

Modern technology and the digital age have become a double-edged sword (which, by the way, is another original Jewish reference!) While the technology has seen a flourishing of new works of Jewish music of all kinds, it is also enabling people to easily make and distribute copies without any recompense to the artists who created the work. The present flourishing may be reduced to a trickle if the artists can't make a living.

Yes, I'm an educator who has run religious schools, so yes, I know what a limited budget we all have to work within. I also direct choirs and know what choir music costs. I understand with a deep passion how important the work we all do is to the future of Judaism. I'm also musician and arranger, and my work appears on a few recordings. I know that writers of Jewish music want to get their work out to people – however, they still want to make a living. So I am sensitive to both "sides" of this issue.

The rabbis knew this tension as well. As usual, not being of one mind, they differed on whether "copyright protection" would be a stimulus or deterrent. Some argued that without the incentive of some income from their efforts, scholars would be reluctant to write more commentaries. Others argued "the more Torah, the better." It's hard to argue with that. Just as it is hard to argue with the constant cry of "Lashem Shamayim" (for the sake of Heaven) that is used to justify the scandalous amount of copyright infringement that occurs each and every day in our Jewish institutions.

Yet, if what we are doing is truly "LaShem Shamayim" is it not all the more incumbent upon us to not infringe upon the boundaries of others in such a way as to possibly impact their parnassa, their livelihood?

We need not engage in a "glatt kosher" process here. Common sense must prevail. For example, these days many of the publishers of choral music will grant permission to use photocopies with the purchase of some reasonable number of print copies of the music. Using technology, many artists and publishers will sell you licenses to print out your, on your own paper and equipment, your own copies of music, books, etc. from PDF files. Digital rights management systems can be made non-onerous and can be configured many different ways to allow the original purchaser to make a reasonable number of copies of the file, or burn the file to a CD more than once, but not unlimited quantities. And what artist, what merchant, for that matter, would not be at least somewhat receptive to offering a reduced price for quantity purchases? Film distributors do charge synagogues and other non-profit or religious institutions a lower license fee to show a film than they would charge for a commercial setting.

I don't know about you, but I felt better having paid the $250 fee to show "Paperclips" to my congregation than simply renting it from the local Blockbuster and showing it. By doing so, I just might help insure that the creative minds behind "Paperclips" continue to create films like that.

The Copyright act does have provisions for what is called “Fair Use.” There are even specific Fair Use rules of educational uses. Maybe it's not fair, but under existing U.S. Copyright law, supplementary religious schools do not qualify for inclusion in the class of educational institutions that benefit from the "Educational Fair Use" provisions covering books, music, films and other media. (Most days schools would qualify, however.) Maybe that's something we ought to lobby Congress to change. However, and this needs to be clearly understood-while we may not qualify under the educational fair use provisions, we are certainly eligible under the general provisions for Fair Use in the Copyright Act:

Notwithstanding the provisions of sections 17 U.S.C.§ 106 and 17 U.S.C.§ 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1

Whether we what do in religious schools, synagogues, et al would meet the generally applied Fair Use tests (beyond those reserved exclusively for education) is a very gray area. Some legal experts I have spoken to say that much of what we do would easily meet a Fair Use test. Others argue it’s not as clear cut as it seems. Government is always reluctant to get into any controversy that involves religious institutions. Businesses are not so reluctant. Remember that the music industry went after the mega-churches some time back for all sorts of copyright violations, resulting in the creation of many clearinghouses and licensing consortiums in the Christian music world. (I’ve been arguing, and continue to argue, that we need something similar in the Jewish music world, small as we are-because it will make “doing the right thing” easier for all of us.)

I believe it should be "fair use" to show a portion of a film in a religious school class, or create a "class pack" of assembled chapters from a few different books, or audio clips from a few songs in a class. On the other hand, I do agree that we probably shouldn't be showing full-length commercial DVDs intended for private home use to an entire class, or a group of congregants without some kind of license fee. And we shouldn't be using photocopies of entire textbooks, or illegally copied CDs, mp3s, DVDs, etc.

Yes, common sense is required. Noted Jewish educator, author and lecturer Joel Grishaver, in his "meseket photocopy" (masekhet is the word for a tractate of Talmud) recognizes that there are emergencies, last-minute needs, texts from extremely expensive original sources, etc. in which exceptions ought to be permissible and acceptable. Yet he states the other case quite succinctly: " The use of photocopied textbooks, workbooks, instant lessons, etc. to "save money" no matter how poor the school, is an act of theft and undermines the Torah that is being taught."

There are great resources on the web about Fair use. One good place to start in the Wikipedia Article on Fair Use:

Earlier, I alluded to one possible solution to balance society’s continual call for “more and free” and respect for intellectual property. This is something that needs to come from the creative end. Some time back I read some interesting articles and blog posts that suggested that the solution to overcoming over-saturation and easy access is to give your “product” – your website, your database, your music, your blog – whatever – some unique and defining quality that makes it desirable. For example – there are dozens of sites that might offer the same information. What tangible, or even intangible quality might you be able to give your site to allow it to stand out from the others? Surely this is something artists and musicians already understand.

As a reviewer and critic of Jewish music, I have often remarked about how something does or does not stand out from all the other settings of the same text out there. Good work will stand out. However, that is not enough these days. There is so much noise out there, that “good work will out” is no longer a given. Just look at the mediocrity in general in the popular music industry these days. There’s some really great stuff out there that never gets its due recognition, and some really mediocre stuff that tops the charts. So it is no longer enough to write a really great song or make a really great recording. It needs that, as they say in New Orleans, lagniappe. In fact, that word is a perfect example. It has come to mean that “something extra” but its origins are in referring to little gifts that merchants gave away to their customers at the time of purchase. (A baker’s dozen would be a form of lagniappe.)

The theory is that people will find that lagniappe of value, and it will induce them to buy your product, or order from your website, or download your music rather than go to someone or somewhere else.(Even free things, like website and blogs, can employ the same approach to attract visitors.)

Elul is here. Time to do some inner soul searching. Maybe some organizational inner soul searching. Between now and the end of the Yamim Noraim (Days of Awe, the High Holy Days) might be a good time to go through your shelves, files, Hard drives, CDs, DVDs, videos and weed out the obviously illegal (both under U.S. law and Jewish law) items we have and are using, for ourselves, and our institutions. Time to go to our boards and officers and executives and clergy and insist that we practice the Torah that we teach. Insist that we are not engaging in hassagat g'vul, moving boundaries.

I hoped I've stretched your boundaries a little with these thoughts. If you'd like to know more about copyright and Judaism, please visit http://www.havanashira.org/copycamp.htm where you will find a host of linked resources.

I hope, most of all, that this musing provided you with a little lagniappe!

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20 Years of Random Musings

Dear readers, I have 20 years worth of these Random Musings Before Shabbat. Many of them can be found on this blog, but for a complete archive of all 18 years worth of these musings, please visit my website Musings Archive page at http://www.durlester.com/musings.htm

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In Hebrew, the word for tower is "migdal," and for light "or," which, together make the Hebrew word for lighthouse, "migdalor." The lighthouse is often used in Christian imagery, and I'd like to see it restored to its rightful place in Jewish imagery, for we are the people who are meant to be an "or l'goyim," a "light to the nations."